THIRD SECTION
DECISION
Applications nos. 37504/12 and 78146/12
F.J. and A.J. against the Netherlands and
R.P. against the Netherlands
The European Court of Human Rights (Third Section), sitting on 17 November 2015 as a Committee composed of:
Helen Keller, President,
Johannes Silvis,
Pere Pastor Vilanova, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above applications lodged on 12 June 2012 and 20 November 2012 respectively,
Having regard to the factual information submitted by the respondent Government and the written comments in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants in the first case (37504/12), F.J. and A.J., are both Iranian nationals and were born in 1975 and 1998, respectively. They are currently residing in the Netherlands. The applicants were represented before the Court by Mr P.R. Klaver, a lawyer practising in Bergen op Zoom.
2. The applicant in the second case (78146/12), R.P., is an Iranian national who was born in 1993. He is also currently residing in the Netherlands. He was represented before the Court by Mr P.B.Ph.M. Bogaers, a lawyer practising in Nieuwegein.
3. The Court decided that the applicants’ identity would not be disclosed to the public (Rule 47 § 4).
4. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.
A. The circumstances of the case
5. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Application no. 37504/12
6. The applicants left Iran in June 2011 and arrived in the Netherlands, where they applied for asylum. In their asylum account, they stated, inter alia, that they had never held passports in Iran and that they had fled Iran without any travel or identity documents. On 13 July 2011, the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel) rejected the applicants’ asylum request.
7. The applicants’ appeal against this decision was upheld on 16 August 2011 by the Regional Court of The Hague. Having found the Minister’s decision to lack sufficient reasoning, the Regional Court quashed it and ordered the Minister to consider the matter afresh.
8. The Minister’s further appeal to the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State) was upheld on 15 December 2011. The Administrative Jurisdiction Division quashed the Regional Court’s judgment of 16 August 2011 and rejected the applicants’ appeal against the Minister’s decision of 13 July 2011 (see paragraph 6 above). No further appeal lay against this ruling.
2. Application no. 78146/12
9. After arriving in the Netherlands, the applicant applied for asylum in February 2009. In his asylum account, he stated, inter alia, that he had left Iran illegally and that he had never held a passport.
10. The applicant’s request was dismissed by the Minister of Justice on 24 August 2010. He appealed against the Minister’s decision to the Regional Court of The Hague; the Regional Court dismissed the appeal on 9 August 2011. The applicant’s further appeal against the Regional Court’s decision was dismissed by the Administrative Jurisdiction Division on 11 November 2011.
11. On 27 March 2012, the applicant filed a fresh asylum application, which was also rejected. The applicant’s final appeal against that decision was dismissed on 30 May 2012 by the Administrative Jurisdiction Division.
B. Developments after the introduction of the applications
12. On 11 March 2015, the Court put a number of factual questions to the Government regarding the practical aspects of removals to Iran, including that of the applicants. The Government submitted their replies to those questions on 22 April 2015. The applicants’ comments in reply were submitted on, respectively, 26 May 2015 (application no. 78146/12) and 3 June 2015 (application no. 37504/12).
13. The Government submitted that the removal of people whose applications for asylum had been rejected was only possible in the event that they held a valid travel document; the Government further submitted that the Iranian mission in the Netherlands only issued travel documents to Iranian nationals who had confirmed that they wished to return to Iran. Thus, for an attempt to obtain a travel document to be successful the applicants in question would have to be willing to cooperate.
1. Application no. 37504/12
14. The Government stated that three years ago the applicants had been presented to the Iranian mission in the Netherlands for the purposes of obtaining travel documents. Given that the applicants had stated on that occasion that they were unwilling to return to Iran and given that they held no original documents proving their Iranian nationality, no laissez passer was issued.
15. In their comments on the Government’s replies (see paragraph 12 above) the applicants noted that, since their presentation to the Iranian mission, the Netherlands authorities had not taken any steps aimed at their effective removal to Iran which, in any event, would remain contrary to their rights under Article 3 of the Convention.
2. Application no. 78146/12
16. The Government informed the Court that the applicant’s case had been presented to the Iranian mission in the Netherlands. However, as the applicant had stated that he was unwilling to return to Iran, the application for a laissez passer had been rejected. The applicant confirmed this.
COMPLAINTS
17. All three applicants complained that their removal to Iran would expose them to a real risk of being subjected to treatment proscribed by Article 3 of the Convention. The applicant in application no. 78146/12 also complained that his removal to Iran would be contrary to Article 2 of the Convention and that the Iranian authorities would be unlikely to respect his rights under Articles 5, 6, 8, 9 and 10 of the Convention. Lastly, he complained under Article 13 of the Convention that the proceedings in respect of his further appeal before the Administrative Jurisdiction Division could not be regarded as constituting an effective remedy.
THE LAW
A. Joinder of the applications
18. Given their factual and legal similarity, the Court decides to join these two applications, in accordance with Rule 42 § 1 of the Rules of Court.
B. The applicants’ complaints under Articles 2 and 3 of the Convention
19. Article 37 § 1 of the Convention provides:
“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
20. The Court reiterates at the outset that, according to its established case-law in cases concerning the expulsion of an applicant from a respondent State, once the applicant no longer risks being expelled from that State, it considers the case to have been resolved and strikes it out of its list of cases, whether or not the applicant agrees (see M.E. v. Sweden (striking out) [GC], no. 71398/12, § 32, 8 April 2015).
21. The Court notes that the Netherlands authorities do not (at least, not until the applicants have valid travel documents) intend to proceed with their actual removal to Iran. It further notes that the applicants’ cooperation is a condition sine qua non for obtaining a travel document from the Iranian mission in the Netherlands and that the applicants are not prepared to provide such cooperation. Lastly, it notes that, should any practical steps aimed at the applicants’ effective removal to Iran nevertheless be taken in the future, the applicants may challenge such steps (see K. v. the Netherlands (dec.), no. 33403/11, §§ 25 and 28, 25 September 2012).
22. In the light of the foregoing, and in the absence of any special circumstances regarding respect for the rights guaranteed by the Convention or its Protocols, the Court, in accordance with Article 37 § 1 (c) of the Convention, considers that it is no longer justified to continue the examination of the applicants’ complaints under Article 3. The same applies in respect of the complaint under Article 2 of the Convention raised in application no. 78146/12. Accordingly, these parts of the applications should be struck out of the list of cases pending before the Court.
C. Other complaints
23. The applicant in application no. 78146/12 also raised complaints under Articles 5, 6, 8, 9, 10 and 13 of the Convention. Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the provisions invoked. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Decides to strike the applications out of its list of cases in so far as they concern complaints raised under Article 2 and/or Article 3 of the Convention;
Declares inadmissible the remainder of application no. 78146/12.
Done in English and notified in writing on 10 December 2015.
Marialena TsirliHelen Keller
Deputy RegistrarPresident
Full & Egal Universal Law Academy